개정 Incoterms® 2020의 주된 내용과 쟁점

Abstract

On 16. Sep. 2019, ICC released Incoterms® 2020 which revised Incoterms® 2010. Compared to Incoterms® 2010, there were not many dramatic changes but several changes are notable; a) it was revised in a user-friendly way in presenting the rules. b) DAT, which was not in frequent use, was reshaped to DPU. c) it provides different levels of insurance in CIF and CIP. d) it allows arranging for carriage with seller's or buyer's own means of transport in FCA, DAP, DPU and DDP. e) it includes security related requirements within carriage obligations and costs. f) it allows the parties to agree that the buyer will instruct its career to issue an on-board bill of lading to the buyer under FCA. Among these changes, this paper focuses on the change to FCA. New FCA rule provides that upon agreement the buyer must instruct the carrier to issue to the seller, at the buyer's cost and risk, a transport document stating that the goods have been loaded, such as a bill of lading with an on-board notation. Regarding the validity of a bill of lading without receipt or shipment of cargo, Korean Supreme Court held that the bill issued before the carrier's actual receipt or shipment is null and void and the nullity would not be supplemented even after the actual shipment. This view taken by the Korean Supreme Court is inconsistent with new FCA rule of Incoterms® 2020, which clearly recognizes the validity of a bill of lading without shipment of cargo, and may harm the rights of the holder of the bill of lading. Considering that FCA is widely used in international carriage because it is suited to deliver containerised goods, it would not be appropriate to uniformly deny the validity of the bill of lading without shipment of cargo. Therefore the article 854 of the Korean Commercial Code should be interpreted as imposing contractual liability against the bona fide holder of the bills on the premise of the validity of the bills issued by the carriers without receipt or shipment of cargo in order to harmonize the principles of Korean Commercial Code and Incoterms® 2020.